Dorset v. Kirkland
| Decision Date | 27 May 1919 |
| Docket Number | (No. 586.) |
| Citation | 99 S.E. 407 |
| Parties | DORSET v. KIRKLAND. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Swain County; McElroy, Judge.
Action by A. T. Dorsey against J. W. Kirk-land. From an order continuing temporary injunction to the hearing, defendant appeals. Affirmed.
Following is probate of deed referred to in opinion:
This is an action to perpetually injoin the defendant from interfering with the operation of plaintiff's flume, which extended for about 50 feet across defendant's land.
Plaintiff secured a temporary injunction from Judge McElroy, and upon the hearing upon the notice to show cause why the injunction should not be continued to the hearing the said temporary order was continuedto the hearing and the facts found by his honor. Defendant thereupon excepted and appealed to the Supreme Court.
In the year 1915 the plaintiff, A. T. Dorsey, purchased a tract of timber land, containing about 1, 700 acres, situated on Chamber's creek, in Swain county, and lying from three to six miles from the nearest railroad point, for the purpose of conducting a lumbering operation. Immediately after the purchase of the tract the plaintiff negotiated with the several landowners holding property between the tract purchased, and the railroad, for the purchase of a right of way extending from said timber tract to the railroad, as a location for a flume line, over which to transport his lumber, pulp, and acid wood to the railroad for shipment.
In August, 1915, plaintiff purchased from J. W. Kirkland, defendant, and his wife a right of way over two small tracts of land owned by them, for the consideration of $1, and the further consideration that the plaintiff would purchase their pulp and acid wood placed on the flume line at $3 per cord.
At the time this deed was executed it was not acknowledged or placed to record, but was delivered to the plaintiff, who kept it among his papers until after the institution of this action. On the 15th day of March, 1919, the plaintiff procured said conveyance to be proven upon the oath and examination of George Chambers as to the signature of defendant, J. W. Kirkland, and said paper was thereupon registered on March 17, 1919.
Immediately after securing said deed, in the year 1915, plaintiff constructed a flume over said land, and has been ever since said date continuously using the same for the purpose of transporting his lumber and other timber products from his mills to the railroad, without objection or complaint of defendant or his wife.
At the date of the institution of this action the plaintiff was conducting said lumbering operation, and that said operation will continue for a space of about two years before all of the plaintiff's timber is removed. The plaintiff's flume is about five miles in length, and the portion of said flume upon defendants' land is a stretch of not more than 50 feet across the corner of said tracts.
Just prior to the institution of this action the plaintiff procured a warrant to be issued against the defendant, Kirkland, charging him with larceny of lumber from said flume as same was being transported across his land, the defendant being bound to court thereon; and thereafter the portion of the flume crossing the defendant's land fell down, and when plaintiff's hands undertook to repair same they were met by the defendant, who forbid them to go upon the property, and the plaintiff instituted this action.
The defendant acquired title to one of the tracts of land on which the flume is located under a deed which conveyed the land, to the defendant and his wife, both of whom are now living; and the deed to the plaintiff, conveying the right of way, was executed by the husband alone, and contains this provision:
"It is further understood and agreed and is a part of this conveyance that the said strip or parcel of land herein conveyed shall revert back and become the property of the parties of the first part, their heirs and assigns, without reconveyance, whenever the said party of the second part shall cease to. use the same for flume line purposes, and such failure shall extend for a period of twelve consecutive months."
The defendant contends:
(1) That the action ought to be dismissed because the summons was issued during a term of court.
(2) That there is no consideration to support the deed under which the plaintiff claims.
(3) That the deed to plaintiff was improperly probated and ought not to have been admitted in...
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Foreclosure of Deed of Trust Recorded in Book 911, at Page 512, Catawba County Registry, In re
...property acts). Bank v. Hall, 201 N.C. 787, 161 S.E. 484 (1931); Davis v. Bass, 188 N.C. 200, 124 S.E. 566 (1924); Dorsey v. Kirkland, 177 N.C. 520, 99 S.E. 407 (1919); Bynum v. Wicker, 141 N.C. 95, 53 S.E. 478 (1906). The most distinctive characteristic of the tenancy by the entirety is th......
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Budwit v. Herr
...joint lives. Bruce v. Nicholson, 109 N.C. 204, 13 S.E. 790; Bank [of Glade Spring] v. McEwen, 160 N.C. 414, 76 S.E. 222; Dorsey v. Kirkland, 177 N.C. 520, 99 S.E. 407; Davis v. Bass, 188 N.C. 200, 124 S.E. 566. It is therefore manifest that if the deceased wife were now living, the appellan......
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